In Depth

The Indiana Court of Appeals affirmed an arbitration award against Citizens Gas & Coke Utility today, ruling the arbitrator
did not exceed her power in determining an employee was unjustly terminated and his widow was entitled to his life insurance
policy through the collective bargain agreement.

In Citizens Gas & Coke Utility v. Local Union No. 1400, International Brotherhood of Electrical Workers, 49A05-0612-CV-751,
Citizens appealed the trial court's denial of its verified complaint and application to vacate arbitration award, or in the
alternative, for the modification or correction of award. Citizens argued the arbitrator, Cynthia Stanley, exceeded her powers
by considering an unwritten attendance policy to determine an employee was unjustly terminated and by awarding his widow $75,000
based on a life insurance policy; Citizens also argued Stanley wrongfully refused to hear evidence relating to the controversy.

Russell Hilt began working for Citizens Gas & Coke in 1981. He was severely injured in 1984 while working and missed a great
deal of work in the years following the accident. In 1999, Hilt received a verbal warning for absenteeism, and in 2001, Citizens
issued a "last chance agreement" that said he must keep an attendance record of 98 percent or better for two years.

In 2003, Citizens and IBEW Local 1400 entered a collective bargaining agreement, which included, "Absence reviews indicating
discipline and disciplinary reports for absenteeism/tardiness will be returned to the Union, if, for a period of two years
since the most recent absence review indicating discipline or disciplinary report for absenteeism/tardiness in the employee's
file, the employee maintains a record with no further discipline for absenteeism/tardiness."

The union understood that to mean a person would start over with a clean slate if there were no more incidents for two years
after the report was filed.

In 2003, Hilt's "last chance agreement" was expunged because of successful completion. Shortly thereafter, Hilt went into
diabetic shock, fell, and injured his face. Treatment and maintenance of his diabetes caused him to miss a lot of work that
same year. On Jan. 14, 2004, Hilt was terminated for absenteeism without any warning. At the time, there was an unwritten
attendance policy that said employees were subject to progressive discipline for missing work: verbal; written; decision-making
leave; and termination. The union filed a grievance on Hilt's behalf, which his Mrs. Hilt continued after his death in September
2004.

In arbitration, Stanley concluded Citizens did not have just cause for firing Hilt because he had successfully completed the
"last chance agreement" and was not given any warnings as required by the unwritten attendance policy. Stanley awarded Mrs.
Hilt the life insurance proceeds of $75,000 and other fringe benefits to be paid by Citizens. Citizens requested an additional
evidentiary hearing to recalculate money to be paid and to try to prove if Hilt would have been able to actively work during
those months after he was terminated, but Stanley denied the hearing. Citizens filed its application to vacate or modify award
in Marion Superior Court, which denied the application.

The Court of Appeals affirmed Stanley's award in favor of the union and Mrs. Hilt. Stanley did not exceed her power in determining
Hilt was unjustly terminated because the CBA had no provisions on what constituted the type of discipline required for excessive
absenteeism. The unwritten policy was made written in 2004 after Hilt's termination and was commonly used by Citizens.

Because Hilt was unjustly terminated, it was well within Stanley's scope to award his widow the fringe benefits that would
have been paid to her but for his wrongful discharge. The collective bargaining agreement specifically provided for life insurance,
and Stanley ordered Citizens to pay it.

Citizens contends that Stanley violated Indiana Code 34-57-2-13(a)(4) in refusing to hear evidence relating to the controversy.
This statute does not allow for the review of a trial court's denial of a party's request for an additional evidentiary hearing,
only evidence from the actual arbitration hearing. Citizens had opportunities to present evidence during arbitration or call
Mrs. Hilt as a witness, but did not do so.

Finally, the Court of Appeals ruled the necessary evidence to calculate the contractual damages owed to Mrs. Hilt were present
at the arbitration via the CBA.

Conversations

0 Comments

Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or
hateful.

You are legally responsible for what you post and your anonymity is not guaranteed.

Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content
are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.

No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are
relevant to the topic at hand, but please do not link to objectionable material.

We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag
a post simply because you disagree with it.